[WSBAPT] Decedent Landlord in Unlawful Eviction

Mon Sep 11 09:07:04 PDT 2023

Diane—This is one of those situations where the statutes, despite being still on the books, are superseded by the court rules.

The statutory deadlines have been superseded by flexibility under CR 25(a). The overall operative statute is RCW 2.04.200<https://app.leg.wa.gov/RCW/default.aspx?cite=2.04.200> which allows court rules to override statutes as to procedural matters. See also Petrarca v. Halligan, 83 Wash.2d 773, 522 P.2d 827 (1974) (overriding former RCW 11.40.100 requiring substitution within 90 days); Barker v. Mora, 52 Wn.App. 825, 764 P.2d 1014 (1988) (overriding RCW 4.20.050 requiring substitution within one year of date of death).

CR 25(a) also overrides RCW 4.08.140 so that, in order to substitute the proper parties, one need only serve them with the Motion for Substitution under CR 5, and need not achieve service of process of the complaint and summons on the new parties. Mikkelborg, Broz, Wells & Fryer v. Bean, 97 Wash.App. 573, 985 P.2d 950 (1999). Though I don’t know that I’d feel comfortable trusting that entirely; I think I’d rather get an acceptance of service from the new party or use actual service of process to serve them with summons and complaint at the same time as the motion for substitution.

I wish the statutes would be get “cleaned up” by repeal or something.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Diane J. Kiepe
Sent: Saturday, September 9, 2023 1:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Decedent Landlord in Unlawful Eviction

Sad story, recently we were involved in a case where the estate was allowed to be substituted over a  year later – basically judge said all parties know of the litigation and no harm would be done by allowing the substitution.  It’s always very confusing to me when rules will be applied by the court and when they won’t.

All that to say, the rule of 4 months, in my case, was not applied.

Diane J. Kiepe
Douglas Eden, P.S.
717 W. Sprague Ave., Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Nick Pleasants
Sent: Friday, September 8, 2023 5:14 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Decedent Landlord in Unlawful Eviction

David,
Take a look at RCW 11.40.110. You’ll need to file a motion to substitute the PR as defendant. I believe this would be done in the probate action. If no probate is pending, you can open one as the Plaintiff/Creditor (RCW 11.28.120(6)) . Note the 4-month statute of limitations to accomplish the substitution. I don’t believe it is subject to the creditor claim process, although folks often do file a claim as well as a petition for substitution. See, e.g., Alexander v. Highfill, 18 Wash.2d 733, 140 P.2d 277 (1943).
Best,
Nick

Nicholas Pleasants | Shareholder

[OseranHahnAttyatLaw 8]

11225 SE 6th Street | Suite 100 | Bellevue, WA 98004
Main: (425) 455-3900 | Fax: (425) 455-9201 | E-mail: npleasants at ohswlaw.com<mailto:npleasants at ohswlaw.com>

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of David Faber
Sent: Friday, September 8, 2023 4:15 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Decedent Landlord in Unlawful Eviction

List,

A colleague who is working an eviction defense under the Washington State pro bono eviction defense pilot program had the defendant landlord die during the court of the case with a trial scheduled for the end of September. The colleague has asked me whether I know what he should do to bring the estate into the trial. I stay away from estate litigation so I am no help whatsoever to the colleague. I presume he moves to substitute the Personal Representative as defendant, but with TEDRA and creditor claim procedures, I'm immediately at a loss for whether that's the correct procedural move. Has anyone on this list dealt with a similar situation/are you willing to have a quick phone chat with the colleague regarding how he might properly proceed?

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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